Sunday, June 27, 2010

Will Smarter Lawyers End Frivolous Lawsuits?

How do you know if a lawyer is any good?  Of course, they've all passed the bar, but now their profession is lowering it.  While most of us strive for excellence, and raise our children to value this virtue, prominent legal educators are establishing a new quality intitiative for their profession.  Who says that lawyers can't reform themselves?  Perhaps, we physicians can follow their bold example and raise the credentials of our pre-medical students.  I’ll present the facts. You be the judge.

I have written a dozen posts on tort reform on this blog, which always generate spirited and adversarial retorts from attorneys and their supporters. They accuse me and other tort reform advocates of carrying water for insurance companies. They repeatedly point out that I know nothing about the legal system and are unqualified to opine on its flaws. They deride me when I argue that effective tort reform would reduce the practice of defensive medicine, despite the recent supportive conclusion of the nonpartisan Congressional Budget Office. They deny that their fidelity to the status quo is related to any personal financial conflicts of interest. They maintain that the current system, while imperfect, is sound and just.

I won’t respond to these points here, as I have done so expansively on prior posts in the Legal Quality category of this blog. I reject the dimissive and smarmy remark that I am not qualified to offer views and opinions on the current medical liability system. Does one need a law degree to criticize or praise the legal profession? Do you need to be a chef before you can recommend a restaurant? This is ridiculous. Moreover, any individual who has had the pleasure of being sued and deposed, as I have, has a valid view on the legal process, and is entitled to be heard.

Before shutting me down because you assume that I have a visceral animus against attorneys, keep in mind that my father was an attorney, my brother was an attorney and is now a sitting judge and my sister married an attorney. I grew up hearing about the law and respecting the profession. I fantasized, even during my medical career, of studying law.
  
I learned last week that law students across the country will instantly become much smarter.  How will they accomplish this collective and worthy feat?  Will they study harder?  Will they take summer classes?  Will they pursue advanced degrees?  Hardly.  Law students will get smarter automatically. Here's how the magic will happen.  Their law schools will declare that their students are now smarter.  It's that simple.

Is this a trick? Am I playing with my readers? Am I fabricating this to lure folks to this blog?

Not at all. The Whistleblower uses honest weights. If my word is not enough to satisfy skeptical readers, then here is the link to the New York Times article for your review.

Law schools have decided to arbitrarily raise the grade point averages (GPA) of students to make them more attractive to hiring firms. Here are some key points.

• Several law schools, including highly prestigious institutions, are easing academic standards to raise students’ grades
• Some law schools pay law firms directly to hire their students
• Harvard and Stanford Law Schools recently eliminated traditional grading so employers cannot easily differentiate the students

The schools were responding to complaints that students were having difficulty finding employment. If an applicant is having difficulty finding a job, then I humbly suggest that the applicant and the law school work together to improve the applicant. Isn’t that the purpose of an educational institution? If a football kicker can’t kick a field goal, should the coach lower the goal posts?   Should law students' strategy for securing employment be to increase their legitimate credentials and performance or to lower academic standards?  Law schools have made their choice. 

When leading educational institutions teach that lowering standards is a pathway to success, then they have failed in their mission. This moral and educational transgression is even deeper when it is concocted by law schools, who are ostensibly paragons of justice and fair play. Shameful!

Why stop with lawyers? Let’s raise everyone’s GPA across the nation, so we can instantly become a smarter country. I am willing to support a proposal declaring that every college student is now in the top 10% of his class.

This perverted strategy is likely to prolong the practice of filing frivolous lawsuits.  How can we expect tomorrow's lawyers to recognize that it is wrong to sue innocent people?  Such a recognition requires a moral and ethical mindset, and apparently these qualities are not part of law school curricula, judging by their GPA legerdemain.  What can we expect of lawyers who were taught by their faculty that gaining advantage without merit is commendable?  Their law degrees may be even more frivolous than the cases they will file against us.

I'll borrow a legal term to summarize my reaction to this grade inflation scheme: res ipsa loquitur, latin for 'the thing speaks for itself'.  Does it ever.




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83 comments:

LeisureGuy said...

Well, my comments on your tort reform posts dwell mainly on your willful ignorance of the overall facts of the situation in favor of a handful of treasured anecdotes. It's hard to understand implacable opposition combined with a refusal to read a single book on the issue. It's not that you need a legal degree to comment productively, it's that you really need to engage in the studies on the issue and abandon the approach through anecdotes. I again will recommend The Medical Malpractice Myth (http://goo.gl/XTdM). Reading that you provide you with some basis of general fact and make your posts more solid, based on data. That would seem to me the moral path to take.

But I realize that you don't have the time.

Mariliyn Mann said...

Apparently this grade adjustment move is a reaction to the abysmal state of the legal job market. I'm not supporting it, just trying to give a little factual background. Due to the recent financial crisis and to the fact that there are simply too many law schools churning out too many lawyers, there is a huge surplus of lawyers right now. What's worse, most recent law grads borrowed large sums of money to go to law school, which many of them have little prospect of paying back.

Bruce said...

Lawyers are merely the larval form of politicians - which means they are smarter than everyone else. Didn't you know that, Doc?

To borrow a phrase normally associated with your profession (and to SOME extent true)...what do you call the guy who finished law school at the bottom of his class? COUNSELOR.

Pardon the intrusion...

Anonymous said...

"They deride me when I argue that effective tort reform would reduce the practice of defensive medicine, despite the recent supportive conclusion of the nonpartisan Congressional Budget Office."

No, we don't deride you. We point to 4 decades of evidence showing otherwise.

Not sure what grade inflation at a few law schools has to do with much of anything. It's an academic issue that higher education is always debating in one area or another. It has literally no relevance to the malpractice debate, however.

" I reject the dimissive and smarmy remark that I am not qualified to offer views and opinions on the current medical liability system."

Why is it offensive to you that you need to educate yourself before offering solutions on problems? Your views and opinions are welcome,if often incorrect. However, it's your solutions that show the lack of knowledge about which you speak.

You shouldn't take it personally that those who know more about a subject than you point out the rather obvious flaws in your logic. Nor should you then accuse them of holding their position merely for financial gain.

If a lawyer were hectoring you as to how you could do your job better, you would quite rightly ask if they have the knowledge background to make such suggestions.

Here's a prime example of your lack of knowledge:

"How can we expect tomorrow's lawyers to recognize that it is wrong to sue innocent people"

As has been explained to you time and again, often it's not known who is "innocent" (a criminal law concept) and who is "guilty". The point of a lawsuit is to gather the evidence and let the finder of fact make that decision. A lawsuit is merely an accusation, not a statement of finality.

Now, to a layman, this is a distinction that's difficult to understand, because the thought is that if you get sued you definitely did something wrong. Just like if the police arrest you to many laymen that automatically means you will be convicted of a crime.

Your failure to understand those concepts is what makes it difficult to take your malpractice "solutions" seriously. Putting aside the vagueness of most of them, not to mention the fact they generally just tilt the scales of justice further in favor of the insurers.

But by all means, commence accusing me of holding these positions purely out of self interest.

Anonymous said...

It's also very instructive when people try to paint the many by the actions of a few. It speaks more to the desperation of the painter than the qualities of those painted with such a broad brush.

Your positions stand on their own merit or they don't, Dr. Kirsch. The morality of those who disagree with you don't improve their quality.

Anonymous said...

"They accuse me and other tort reform advocates of carrying water for insurance companies."

When one supports damage caps, then who else could they be carrying water for? Certainly not the injured. Nor the public at large. So who?

Michael Kirsch, M.D. said...

To my anonymous commenter friend: Your comments are in quotations.

“Not sure what grade inflation at a few law schools has to do with much of anything.”

Amazing answer. I’d be more than riled up if medical students (or any students) were given GPA boosts for all of the wrong reasons. We obviously have a different view on academic rigor and integrity.

“You shouldn't take it personally that those who know more about a subject than you point out the rather obvious flaws in your logic.”

Of course, I don’t take it personally. But you imply that you need a juris doctor degree to criticize the system.

“If a lawyer were hectoring you as to how you could do your job better, you would quite rightly ask if they have the knowledge background to make such suggestions.”

I disagree with you. While I might not take advice from an attorney on how to improve my colonoscopy technique, patients without any medical backround have valid views on medical practice and health care delivery. Have you been reading the newspapers this past year? If a physician’s billing practice, for example was unfair (not illegal), wouldn’t a patient be qualified to express a view on this? I am not suggesting that I can advise attorneys on legal strategy or the law, but I and others have a lot to say about the process.

“The point of a lawsuit is to gather the evidence and let the finder of fact make that decision.”

Nice try, but I’m not convinced. Sure your comment sounds right in a law school seminar, but not in the real world. There are too many cases were the most perfunctory review of the facts would demonstrate that a physician should not be targeted. I reject that discovery is necessary in all cases to establish innocence, even though this view sounds proper.

“Just like if the police arrest you to many laymen that automatically means you will be convicted of a crime.”

A police officer needs probably cause. An attorney doesn’t.

“But by all means, commence accusing me of holding these positions purely out of self interest.”

Your views may be purely held, but there is a financial conflict of interest nonetheless.

“When one supports damage caps, then who else could they be carrying water for?”

Just because an idea favors the insurance companies, doesn’t make it evil.

Thanks very much for your comments and taking the effort to express your views here.

Rachel said...

I think the key issue has been lost completely on administrators. There is not a shortage of qualified applicants for positions; there is a shortage of positions! I would think even a law school professor could figure that out.

Wouldn't you want your best students representing your institution in a competitive market?

Anonymous said...

"We obviously have a different view on academic rigor and integrity"

No, we just obviously have a different view on what we can do to affect such a situation. I didn't go to any of those law schools, so I have extremely limited power to change those things. While I find it disappointing, I choose to spend my time dealing with the things I CAN change.

" But you imply that you need a juris doctor degree to criticize the system"

I do not. Criticize all you want - I support your First Amendment rights. However, your criticisms are more likely to be uninformed, and you're unlikely to understand the true effects of your solutions. It's like when laymen criticize how much physicians get paid, even though they have little idea of what a physician actually does.

"I am not suggesting that I can advise attorneys on legal strategy or the law, but I and others have a lot to say about the process."

You have to understand the process first. Your understanding is somewhat limited based on your comments, and based on your solutions.

" Sure your comment sounds right in a law school seminar, but not in the real world. There are too many cases were the most perfunctory review of the facts would demonstrate that a physician should not be targeted. I reject that discovery is necessary in all cases to establish innocence, even though this view sounds proper."

How many cases have you litigated in "the real world"? How many cases have you reviewed the facts in? An example of your lack of understanding is illustrated in your continued use of the word "innocent", which is usually used in the criminal context. I've litigated hundreds of cases, even a few medical malpractice ones. Rarely do I know all the information from the start. If I did, what would be the point of discovery?

"A police officer needs probably cause. An attorney doesn’t."

I'm assuming that you mean "probable" and that's a misprint. If not, it's just further evidence of what I'm talking about with the knowledge base. And a police officer most certainly does not always need probable cause.

"Your views may be purely held, but there is a financial conflict of interest nonetheless."

And there's not one with your support of caps?

"Just because an idea favors the insurance companies, doesn’t make it evil."

No, the merits of the idea make it a poor one. Not to mention the fact it never achieves what its supporters promise it will. Acknowledging who the true beneficiary is simply illustrates one of the reasons it's a poor one.

Nicholas Fogelson, MD said...

Interesting discourse -

I certainly support damage caps as well. The problem with non-capped damages is that the very concept asserts that when ill has occurred, there is a party that must pay for that ill. Bad things do happen in medicine, and sometimes it was preventable. That being said, entry into the medical system with a human physician should come with a basic understanding that that physician, being human, might make an error. Having no cap on non-economic damages basically allows a jackpot situation when the inevitable human error occurs, even though that error was entirely predictable over a large number of physician/patient interactions.

I've often thought of this case:

A 70 year old man with a 8 cm descending aortic aneurysm has a laparotomy to repair the aneurysm. During the case, a clamp is placed on the aorta which lacerates the vena cava. Despite best efforts, the laceration cannot be repaired and the patient dies.

So who is at fault here? The case is known to have an up to 5% case fatality rate, and as such death during the repair is not so unheard of. That being said, every death can likely be traced to some sort of technical issue in the surgery. Sometimes there are surgeries that are so difficult that perfect performance is unattainable. The best archer in the world will still miss the bullseye from time to time - has that archer fired negligently in that case?

For this reason, it is improper that there should be unlimited non-economic damages in cases of simple negligence. The human body is not completely understood, and no procedure or diagnosis can be managed perfectly each time. A normal rate of expected human error is part of the life of a physician, and should be part of the expectation of patients as well.

I fully support a system that reasonably compensates patients for these types of errors through a no-fault fund, rather than a system that forces each patient to fight for compensation. Such a system would likely be of a greater net good that what we are doing now.

Anonymous said...

"The problem with non-capped damages is that the very concept asserts that when ill has occurred, there is a party that must pay for that ill."

Nonsense. Caps only address the value of the harm, not whether or not someone should pay.

"Having no cap on non-economic damages basically allows a jackpot situation when the inevitable human error occurs,"

I don't understand the concept that simply because human error is inevitable it's not compensable. And not just any error, but error that falls below the standard of care. It's inevitable that someone will run a stoplight today. If they run you down are you not entitled to recover for your damages?

As for "jackpot", how many victims of medical malpractice do you know that feel like they won a "jackpot"?

"Sometimes there are surgeries that are so difficult that perfect performance is unattainable. The best archer in the world will still miss the bullseye from time to time - has that archer fired negligently in that case?"

The law does not require perfection. Never has. If you believe it does, no wonder you are supporting caps.

"For this reason, it is improper that there should be unlimited non-economic damages in cases of simple negligence."

They aren't unlimited. The jury determines the value, subject to remittur by the judge or the appeals court. Why are lobbyists for the insurance industry more qualified to determine the value of damages than the people who actually heard the evidence?

As for no-fault, that's fine. Great proposal. Show me the legislation show we can discuss. You won't find it, because tort reform is an insurance industry baby, and they aren't pushing it. Physicians are just the face of the movement. Follow the money and you'll find the insurers and the tobacco industry.

Transor Z said...

Undergrad grade inflation has been around for a few decades, and some of the beneficiaries of that have been and are *gasp* kids in pre-med programs. But as with currency inflation, it gets sorted out by the market.

About 1000 years ago universities were affiliated with major religion. Today, with the exception of some religious institutions, the linkage between higher ed and development of moral compass is dubious.

There's also no real linkage between "frivolous" lawsuits and tort cap issues. Please show me a "frivolous" suit that survives the litigation gauntlet, gets to trial and results in a giant multi-million dollar judgment for the plaintiff. Doesn't really happen. For the sake of argument, a "frivolous" suit, by which I think you mean a weak-to-nonexistent case on the facts, at best will be a "shakedown" of the insurance carrier, typically settling for "nuisance value."

Tort liability is an insurance issue. A no-fault fund is an interesting idea, but as a commenter said above (correctly), tort-reform legislation is a creature of insurance lobbying. Look, actuaries put a price on everything: life expectancy, earning potential, partial and complete loss of limb function, etc. Punitive damages are only appropriate where the doc/hospital were grossly negligent -- leaving the OR to go to the ATM to get cash for a crystal meth hit, for example. Otherwise, plaintiff damages should be limited to actuarial values.

Transor Z said...

Plus damages for pain and suffering as appropriate. (Sorry, pre-coffee commentary)

Michael Kirsch, M.D. said...

Greetings to all. Transor Z, welcome to the blog. I hope that the coffee brought about the desired result. I encourage all to read this very brief Washington Post report on a study published in the Archives on Internal Medicine on tort reform. This will take about 25 seconds of your time (not a book LG!)Here's the link. http://bit.ly/deGSoC

Dan said...

"And a police officer most certainly does not always need probable cause."

Anonymous, in what situation does an officer not need probable cause? I thought that they always needed either probable cause or a warrant or it would be a false arrest.

"As for no-fault, that's fine. Great proposal. Show me the legislation show we can discuss."

How about you tell us what a good no-fault system would look like, and I'll write it up as a bill that I can send to my senators and congressperson. Then we'll have something to talk about?

I've got about two weeks off, and I'm quite serious. So if you've got some time to write up a quick outline I'd be glad to take it from there (with your input). Let's stop focusing on our disagreements and try to do some good.

Transor Z said...

@Doc:

Little bit of confirmation bias there, I think. Forget tort law for a sec. Professional services are always measured against some external standard -- best practices, standard of care, Joint Commission, whatever term you like. Compliance and risk management principles still apply.

We all practice our profession against those standards, adherence to which provides a safe harbor from criticism. Doctors who over-treat or who knowingly provide wastefully redundant care to their patients do not trust professional compliance standards to protect them. As a starting point, that's an employer-employee issue. Why does the employee MD lack confidence in his/her employer and, more broadly, his/her professional association?

Enter the lawyer [cue "Jaws" theme]. Why is that lawyer even in the MD's head? Are the MD's fears data-driven or anecdotal? (the plural of "anecdote" still isn't "data") Where is the data that supports over-treating? Do MDs who over-treat have less litigation or more favorable litigation outcomes when sued than those who just adhere to standard of care? Is there a JAMA or NEJM article on the results of that study?

Or is it just a "binky" cargo-cult thing to do for docs who are just afraid of what might happen?

Anonymous said...

"How about you tell us what a good no-fault system would look like, "

Because I'm not the one advocating for it. I think that's where we end up under single payer, but it's not my goal.

" in what situation does an officer not need probable cause?"

Probable cause to do what exactly?

" Let's stop focusing on our disagreements and try to do some good."

I actually believe in our current system. I believe it's a good system. I believe it gives both sides an opportunity to have their cases heard by a neutral trier of fact, and I think that's a good thing. Just like Thomas Jefferson did.

secondbasedispatch.com said...

This is appalling. I sure hope the GPA inflation tactic doesn't carry over to doctors or engineers.

As for tort reform, I've always believed we need it and your Washington Post story link and own experience confirmed that. I'm not a lawyer or a doctor, just a patient, and I'm sure I'm way too anectodal for some of you, but when you add up all the anecdotes of the extra tests 9 out of 10 doctors say they perform, you're talking billions of dollars wasted on defensive medicine. (That figure came from the Washington Post citing one of the study's authors, not from me.)

I'm sure those estimated costs don't include the social costs of losing doctors who can no longer justify the skyrocketing costs of malpractice insurance. Someone told me that his sister is strongly considering getting out of obstetrics, which she loves, because of those costs. Oh wait, forgive me--it's another anecdote.

And if standard of care is sufficient protection, why are 9 out of 10 doctors responding this way? Wouldn't you expect a lower percentage? Doctors don't strike me as being particularly sheeplike or stupid. Clearly there's something going on here.

Anonymous said...

"I'm not a lawyer or a doctor, just a patient, and I'm sure I'm way too anectodal for some of you, but when you add up all the anecdotes of the extra tests 9 out of 10 doctors say they perform, you're talking billions of dollars wasted on defensive medicine"

We've had tort reform for nearly 4 decades. There is no evidence that it has reduced the cost of healthcare one iota. In fac Nor is there any evidence of "disappearing docs" due to malpractice costs. You can look at the per capita distribution of physicians by state, and you'll find that the presence of tort reform doesn't dictate it. A much better indicator is the affluence of the populace. All the anecdotes in the world don't change those facts. So why would we limit the rights of injured individuals just so some insurers, who are in the risk business, can make a little more money by legislatively removing some of their risk?

Doctors in their field are neither sheeplike or stupid. However, out of their field they're as susceptible, if not more, to scare tactics as anyone else. Particularly if they think it's going to cost them money.

Anonymous said...

The cut off sentence was going to say:

In fact, the state with tort reform the longest, California, has health care as expensive if not more than most other states, and is not seen as a great place to practice:

http://www.chcf.org/publications/2009/06/fewer-and-more-specialized--a-new-assessment-of-physician-supply-in-california

http://content.healthaffairs.org/cgi/content/abstract/20/4/81

http://www.bizjournals.com/sacramento/stories/2010/05/24/daily10.html

Michael Kirsch, M.D. said...

Regarding secondbasedispatch's comment, please note that she is not on my payroll or related to me. I hope secondbase's view will carry some weight as she is neither an atty or a physician, and therefore has no conflict of interest on the issue.

To my anonymous Jeffersonophile, here is a quote from this founding father for you to ponder:

"It is the trade of lawyers to question everything, yield nothing, and to talk by the hour." Thomas Jefferson

Andrew Barovick said...

I share your concerns about grade inflation. The irony is that there are so few jobs for even the most highly-qualified law graduates that jacking up grades across the board will have little measurable effect.

As for your views on lawyers, I think you need to look beyond generalizations. The idea that "frivolous" medical malpractice suits have decimated the medical establishment is simply not accurate, based on numbers both sides of the debate accept. But more important, most competent lawyers in the field cannot afford to take on a case that is any less than solid. It is simple common sense. In these hard times, more than ever, we need to be sure of a return on our investment of time, often 3 years or more, and money, often in the tens of thousands of dollars.

Anonymous said...

""It is the trade of lawyers to question everything, yield nothing, and to talk by the hour." Thomas Jefferson"

As usual, you resort to simply casting aspersions rather than defend the merits of your claims. Understandable given their general lack of merit.

secondbasedispatch.com said...

Dear Anonymous,
Thanks for the links. I look forward to reading them. I'm not afraid to hear a different point of view or even to learn something, although I reserve the right to disagree.

I will reiterate I am not related to Dr. Kirsch/on his payroll/don't even know him, although he did include my blog when he hosted Grand Rounds.

Segue alert: Speaking of Grand Rounds, I will be hosting them on August 10, in case anyone has a health-themed blog post they'd like to submit early in the month.

Dan said...

"most competent lawyers in the field cannot afford to take on a case that is any less than solid"-Andrew

And yet they do.. According to a report put together by JDs and MDs in the NEJM, 37% of claims were not associated with a medical error, and 3% were not even associated with an injury.
(http://content.nejm.org/cgi/content/short/354/19/2024)

And "the system" which Anonymous is so devoted to does not do a good job of weeding them out. Claims not associated with errors or injuries were nonetheless compensated at rates of 28% and 16% respectively.

Yep, things are peachy in the med mal litigation system... if you're a lawyer, that is.

Anonymous said...

"According to a report put together by JDs and MDs in the NEJM, 37% of claims were not associated with a medical error, and 3% were not even associated with an injury."

Were those claims, or lawsuits? A claim may not involve a lawyer.

"Claims not associated with errors or injuries were nonetheless compensated at rates of 28% and 16% respectively."

You draw the opposite conclusion of the authors of that study. And again, a paid claim may never reach the "system".

"Yep, things are peachy in the med mal litigation system... if you're a lawyer, that is."

Perhaps a defense lawyer.

Dan said...

From the abstract, unedited: "Conclusions: Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant."

I do not draw an opposite conclusion, but I do believe that getting it right "most" of the time is not good enough. Not in medicine and not in law.

Transor Z said...

First of all, thank you for the great link to the NEJM article.

This is an important passage:
Reviewers were not blinded to the outcome of litigation because it was logistically impossible to censor this information in the files. . . .

Redaction of litigation results would have been vastly preferable, in my opinion, to control for possible reviewer bias (in either direction).

We used the definition of error of the Institute of Medicine: "the failure of a planned action to be completed as intended (i.e., error of execution) or the use of a wrong plan to achieve an aim (i.e., error of planning)."

The definition of "error" is key to the significance of the study. Let's consider patient safety issues that might not fall within that definition: MRSA, transport injuries, pharmacy errors.

As Dan points out above, the study concluded that 84% of overall costs (plaintiff payments + administrative costs) went to cases in which there was some medical error.

Now, let's talk about the 16% that, for the sake of argument, we'll call "inefficiency." The system is inefficient to the extent that people incur costs when they didn't do anything wrong. Going back to the study, two physicians reviewed the files: the original doc and the study reviewer (sometimes with a blind second reader). As attorneys love to point out at trial, the second doc never actually met the patient or saw events unfold in real-time.

What doesn't the study tell us? It doesn't tell us what 5 file reviewers or 10 file reviewers would have thought. So within that 37% of cases (accounting for 16% of costs -- you really need to use both numbers to fairly analyze the study results) determined to be free of medical error, we can't quantify reviewer subjectivity or inaccuracies in the medical record. We should all be able to agree that it was >0%.

But anyway, back to the 37%/16%. When I mentioned non-medical errors above, here's why: each of those patient safety issues could be caused by negligence of the hospital or facility. Note that in 64% of the cases, the facility was a co-defendant with the doc. (http://content.nejm.org/cgi/content-nw/full/354/19/2024/T1) Note also on that table the significant spread between mean and median compensation and costs -- that lines up with 37% of cases accounting for only 16% of costs. As I said in my earlier comment, weak cases just don't get big verdicts/settlements and they are not as costly to defend against either.

So something goes wrong and both hospital and treating physicians are named defendants. Docs, remember that you're part of a patient care system. It's not all about you. It's about hand-washing and good charting and the rest of the shit you're tired of hearing about at work. Thus the huge nationwide push to improve patient safety in the last 10 years.

So we come to a REALLY IMPORTANT litigation outcome we don't have the data for from the NEJM article: how many of those 37% of cases without medical error justly resulted in a verdict or settlement for plaintiff against co-defendant facility because somebody other than the doc really f'ed up and hurt or killed the patient? We can't tell from this study.

So I think the honest assessment of this study is that it is interesting but leaves important gaps. I'll leave you with this note: here in Massachusetts all med mal cases must be reviewed for merit by a tribunal comprised of judges, providers (usually doctors) and lawyers. They kick about 20% of claims, the majority of which end up getting dismissed. I think that's a good idea.

http://www.aaos.org/news/aaosnow/may10/managing6.asp

Sorry for the book, but I hope this contributes to the conversation.

Anonymous said...

"I do not draw an opposite conclusion, but I do believe that getting it right "most" of the time is not good enough. Not in medicine and not in law."

Short of perfection, which is not going to be achieved by us humans - what is your allowable error percentage?

Anonymous said...

Contingency arrangement is illegal in every other profession except in US legal profession. It used to be illegal and immoral here as well, and still is so, for most of the rest of the legal world. I would be interested to see if lawyers would support excessive payments when they get the same fixed fee regardless. Also, would the lawyers and the rest of the country accept contingency arrangement for the medical services? If you get better, pay 10% of your lifetime earnings, if not, oh well, no charge except expenses... Lawyers can second guess the doctors all day long, but God forbid, someone else holds a mirror to them! I have personal knowledge of at least a dozen claims against doctors, and none of them had any merit except emotional value for the jury. The facts were manipulated and misrepresented to serve one purpose: to get paid.
By the way, reducing premiums by caps on intangibles would reduce Insurance company premiums, ergo, their profits as the profits are regulated as a percentage of premiums. Most good Doctors keep practicing in this environment because they are the stupid morons who can see nothing but the opportunity to help a patient in need who can then turn around and devastate the doctor. They have their nature, we have ours. Nobody is perfect. I am living with this guiding principle.

Anonymous said...

" I would be interested to see if lawyers would support excessive payments when they get the same fixed fee regardless."

Who is getting "excessive payments"?

"By the way, reducing premiums by caps on intangibles would reduce Insurance company premiums, ergo, their profits as the profits are regulated as a percentage of premiums"

You assume that insurers would reduce their premiums. We've had caps a long time - premiums have continued to rise and fall with the overall economic climate. Which makes sense because insurance is usually underwritten at a loss, as the money is made on the float. It's not the dollar in-dollar out calculation you're assuming.

As far as eliminating contingency fees, that's fine. How do you propose those without significant cash reserves pay their attorneys, their experts, etc? Or are they just SOL if they get injured?

Michael Kirsch, M.D. said...

What are you thoughts on this concept. We set up a health court (HC) to make an initial ruling if there is a reasonable basis that medical malpractice occurred. Perhaps, a preponderance of the evidence standard would be used. If the HC decides there is no reasonable basis, then the plaintiff would still have a right to sue, but plaintiff and attorney would be responsible for all legal fees. This would preserve plaintiff's right to sue, but would create an two incentives not to litigate: (1) Negative ruling by HC (2) Financial penalty if case is lost

Anonymous said...

I think that it seems we've then added a whole layer of bureaucracy with your "court", not to mention additional expense to the taxpayer, for no apparent reason. And both sides still have to go through all the discovery process to present their case to this health court. So effectively you've increased both sides costs as they now have to try their cases twice.

You state two standards, one "preponderance of the evidence" and the other "no reasonable basis". The latter is so low as to be meaningless, and in the former that's already the standard so why do it twice? All that does is make it harder on the plaintiff, since after all that's more money out of their pocket that they likely don't have, since the insurer can still proceed to trial even if the HC finds against them.

What's more, you only want the plaintiff to bear the legal fees if they ignore the HC ruling. Not sure why that is - justice?

I think we've got quite enough government bureaucracy, thank you very much. I see no reason to add more.

But if one believes in this, why stop at malpractice claims? Why not have a special court for suits revolving around faulty design of buildings, or physicians claims against health insurers?

Michael Kirsch, M.D. said...

Thanks for your comment. Look past my errors regarding the evidentiary standard, so we can focus on the concept. I think that a health care court is intriguing, although there may be other means to the same end. I am suggesting that the concept be extended to all forms of litiation. I am focusing on the area of law that I personally have been victimized by, along with countless medical colleagues. Perhaps, if the model worked will with respect to medical liability, that it could be extended. I do not think that full discovery should occur in the HC. Otherwise, there would be in essence two trials. This would be an abbreviated process to screen out cases that the HC deems without merit. It would add a thin layer of bureaucracy with the hope of stopping lawsuits that should not proceed. I think it's worth the trade off. The penalty for a case that is filed over the HC ruling is essential. If a plaintiff wants to roll the dice after a HC rules against him, then there needs to be an incentive not to file, particularly since I suspect the HC's view is likely to prevail at trial. If you believe in a HC system, and there must be some barrier to filing if plaintiffs still want to sue despite an adverse opinion from the HC. Without this, then the HC has no influence.

Michael Kirsch, M.D. said...

In my haste in between patients, I mangled a sentence. It should read:

I am not suggesting that the concept be extended to all forms of litigation. I am focusing on the area ...

Anonymous said...

I don't know why you'd give one area of law, particularly one that has so few cases go to that point, a special star chamber of its own experts, and not given any other area one. You don't think engineers think they deserve it? Insurers? Your version of justice seems geared only toward your own particular narrow interest.

"I do not think that full discovery should occur in the HC."

If neither side gets to put their full case on, I don't see the point. Then we have a group making decisions without all the facts.

You say a "thin layer of bureaucracy" but surely someone in the healthcare industry knows better than to suggest any bureaucracy remains thin for long. And it'd be a pretty expensive layer given the cost of the professionals involved.

"If a plaintiff wants to roll the dice after a HC rules against him, then there needs to be an incentive not to file, particularly since I suspect the HC's view is likely to prevail at trial. "

Sure, it definitely punishes the Plaintiff more than the defense. The plaintiff's resources are far more limited. The defense, if it thinks a jury seeing all the evidence on what its experts believe to be a close case might change its mind, has the financial ability to roll the dice. And it only makes sense for them in a high damage case to do so. The additional cost may be a small fraction of the overall damages they could conceivably avoid.

"If you believe in a HC system, and there must be some barrier to filing if plaintiffs still want to sue despite an adverse opinion from the HC. "

Again, I don't see the point of another expensive government bureaucracy making decisions and imposing penalties on things without all the facts.

There are already so many actual and economic barriers to filing a malpractice claim I don't see the need to add another.

Anonymous said...

Incidentally, I think you're overusing the term "victimized". You've had to appear in a lawsuit, mostly paid for by your insurer, and lost a few days, maybe even weeks, from work. You're still employable at a very, very high salary compared to most Americans, you can still work, can still do all the things you could before.

I realize that the term "victim" is overused in our society these days in general, but when contrasted to what the party injured by malpractice is facing, I think perhaps you're rhetoric is too strong.

Michael Kirsch, M.D. said...

Sure, it definitely punishes the Plaintiff more than the defense. First of all, many of us feel that physicians are presently being unfairly punished. No system will be perfect. The current one is deeply flawed, particularly with respect to med mal. I'm willing to consider health courts, or any other idea, as a pilot project to try to bring more fairness to a system that shoots buckshot by design. Don't you think that legal reform is needed? How much credibility would a physician have he stated that our health care system was working just fine?

Anonymous said...

"Sure, it definitely punishes the Plaintiff more than the defense"

I guess I feel corporate America has enough advantages and that one more isn't necessary. And I have a healthy respect for our citizenry that serves on juries. In fact, I think that's one of the greatest things about our republic. I know the founders thought so too, based on reading the Declaration and Constitution.

" First of all, many of us feel that physicians are presently being unfairly punished"

Lots of people feel lots of things. Don't know that they're all entitled to a whole other bureaucracy as a result. Just like your statement that it's "deeply flawed". That in itself doesn't tell us much. Other than your opinions, which I'm not discounting, but aren't enough to abrogate Constitutional rights.

" I'm willing to consider health courts, or any other idea, as a pilot project to try to bring more fairness to a system that shoots buckshot by design."

Studies not done by interest groups have shown this not to be true. But your proposal doesn't bring "fairness" to it, it simply punishes one side in favor of insurers. Maybe we have different definitions of fair though.

As for whether legal reform is needed, I'm not sure what you mean. What type of reform?

As for a physician's credibility, I don't know. Depends on what part of it. I don't really think of healthcare as a "system", at least with respect to physicians. They are professionals offering a service. I would like more transparency in the quality of their work and how to pay them more directly, sure.

But I don't know that I want to add a whole bunch more government to healthcare, nor do I think I want to start tilting the scales further in favor of health insurers against physicians out of some misguided notion of "fairness". And certainly not based on my anecdotal evidence or that of my buddies. After all, the plural of anecdote is not data.

Anonymous said...

Dr. Kirsch:

Texas is a perfect example of what happens when you pass caps. The tort reform movement in 2004 destroyed the right of the very young, the very old, and the stay at home moms and dads from suing doctors.

The $250K cap cuts off non-economic damages. The above listed do not have very much economic damages. Further, the laws changed regarding expert witnesses. Nowadays these guys have to be practicing regularly in that field to testify in court. They also charge a lot of money. This is why the caps prevent suits against doctors for injuries to most claimants. How is that justice? A doctor in Texas is the only person or entity constructively immune to tort liability... that is unless the guy or gal harmed is wealthy and has a lot of lost earning capacity to pay for the expert witnesses.

Also, you keep glossing over the fact that in order for a med mal case to proceed to a jury trial (the best measurement), a medical doctor must look over the case and determine that the defendant was indeed negligent. The trial lawyer simply gathers all the evidence and puts it together in the form of an argument.

Google "legal malpractice" in your state and see how many law firms pop up. Lawyers get sued regularly, many times for the same so called "frivolous" reasons as doctors do.

Last, contingency fees are necessary because a plaintiff's firm must have a reserve to fund the expert witnesses, the tests in products liability cases or any other overhead expenses. Many times these exceed a few hundred thousand dollars. How else would they be able to put on new cases, borrow money from the government?

Michael Kirsch, M.D. said...

Thanks for your comment.

"Also, you keep glossing over the fact that in order for a med mal case to proceed to a jury trial (the best measurement), a medical doctor must look over the case and determine that the defendant was indeed negligent. "

Not quite. I am told that it is a low hurdle to get an attorney to sign an affidavit of merit. You might know this issue better.

I completely understand your points. There is tensions between various consitutencies. Everyone has rights and is entitled to justice. The enigma is to recalibrate the system, still preserving everyone's rights as much as possible, and serving the greater good. I believe the current system fails in this mission, particularly with respect to the latter objective.

Anonymous said...

I can appreciate those are your beliefs Doc. But you have to allow for the possibility that you may be wrong and your rather narrow experience with a system that handles literally thousands upon thousands of disputes a day may not be an accurate perception or even representative of the whole.

And while maybe some calibration is needed I have a hard time believing making it harder on the poor and weaker members of society in favor of insurers is the answer.

Michael Kirsch, M.D. said...

"But you have to allow for the possibility that you may be wrong " Of course, I do. I presume true for you also. Consider these facts:

(1) Most victims of medical negligence are never captured by the system and receive no compensation
(2) Most physicians who are sued are ultimately found to be not guilty or dismissed at some point in the process.

I think we can do better.

Anonymous said...

Those are great facts. Unfortunately your "solutions" don't really address those problems. They just make it harder for poor people to get justice.

The other thing about those facts is that physicians only want to remedy one of them, judging by their proposed solutions. They, and their insurers, have little interest in more medical malpractice being compensated for. Especially their insurers, who promulgate the "reform" physicians back.

If you think we can do better, I'd love to hear how you want to help more people get paid who don't currently receive compensation.

Michael Kirsch, M.D. said...

I have given thousands of words on my thoughts on this issue throughout this blog and elsewhere.

What are your thoughts specifically addressing the two points I raised in my prior comment?

Anonymous said...

I know you've given lots of words. I just keep waiting for some to address the problem of not enough people being compensated.

My thoughts are that it's a damn shame more people aren't compensated, but short of no fault (which we will likely get in conjunction with single payer) I don't know how we do it. After all, I couldn't ask a defendant to simply give up their right to defend their case. And in highly complex cases which require experts, which med mal typically are, that takes time and money on both sides.

As for filing suit against physicians and then having to dismiss, I don't see this as the outrage you do. However, if the filing suit is the part you don't like, I would suggest we extend the statute of limitations for med mal and create a mechanism for physicians to give testimony prior to suit being filed.

Anonymous said...

§ 74.401. QUALIFICATIONS OF EXPERT WITNESS IN SUIT
AGAINST PHYSICIAN. (a) In a suit involving a health care liability
claim against a physician for injury to or death of a patient, a
person may qualify as an expert witness on the issue of whether the
physician departed from accepted standards of medical care only if
the person is a physician who:
(1) is practicing medicine at the time such testimony
is given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical
care for the diagnosis, care, or treatment of the illness, injury,
or condition involved in the claim; and
(3) is qualified on the basis of training or
experience to offer an expert opinion regarding those accepted
standards of medical care.
(b) For the purpose of this section, "practicing medicine"
or "medical practice" includes, but is not limited to, training
residents or students at an accredited school of medicine or
osteopathy or serving as a consulting physician to other physicians
who provide direct patient care, upon the request of such other
physicians.
(c) In determining whether a witness is qualified on the
basis of training or experience, the court shall consider whether,
at the time the claim arose or at the time the testimony is given,
the witness:
(1) is board certified or has other substantial
training or experience in an area of medical practice relevant to
the claim; and
(2) is actively practicing medicine in rendering
medical care services relevant to the claim.
(d) The court shall apply the criteria specified in
Subsections (a), (b), and (c) in determining whether an expert is
qualified to offer expert testimony on the issue of whether the
physician departed from accepted standards of medical care, but may
depart from those criteria if, under the circumstances, the court
determines that there is a good reason to admit the expert's
testimony. The court shall state on the record the reason for
admitting the testimony if the court departs from the criteria.
(e) A pretrial objection to the qualifications of a witness
under this section must be made not later than the later of the 21st
day after the date the objecting party receives a copy of the
witness's curriculum vitae or the 21st day after the date of the
witness's deposition. If circumstances arise after the date on
which the objection must be made that could not have been reasonably
anticipated by a party before that date and that the party believes
in good faith provide a basis for an objection to a witness's
qualifications, and if an objection was not made previously, this
subsection does not prevent the party from making an objection as
soon as practicable under the circumstances. The court shall
conduct a hearing to determine whether the witness is qualified as
soon as practicable after the filing of an objection and, if
possible, before trial. If the objecting party is unable to object
in time for the hearing to be conducted before the trial, the
hearing shall be conducted outside the presence of the jury. This
subsection does not prevent a party from examining or
cross-examining a witness at trial about the witness's
qualifications.
(f) This section does not prevent a physician who is a
defendant from qualifying as an expert.
(g) In this subchapter, "physician" means a person who is:
(1) licensed to practice medicine in one or more
states in the United States; or
(2) a graduate of a medical school accredited by the
Liaison Committee on Medical Education or the American Osteopathic
Association only if testifying as a defendant and that testimony
relates to that defendant's standard of care, the alleged departure
from that standard of care, or the causal relationship between the
alleged departure from that standard of care and the injury, harm,
or damages claimed.

Anonymous said...

Doc:

I posted the above from Texas Law. As you see, the requirements are stringent to be an expert. I'll tell you something else.. they are a heck of a lot more stringent than an expert for a legal mal case.

However, as I stated earlier, the $250K on non-ecos makes lawsuits against docs impossible for certain victims.

That is not justice.

Anonymous said...

(1) Most victims of medical negligence are never captured by the system and receive no compensation

Most perpetrators of burglary are never caught and the victims never receive their stuff back. Under your logic, the process of trying and convicting burglars is flawed because most of them aren't caught.

(2) Most physicians who are sued are ultimately found to be not guilty or dismissed at some point in the process.

Not negligent is the term. I'm not sure how the med mal laws work in your state, but in Texas the expert witness on the stand for the plaintiff has to have excellent credentials for the jury to take him seriously. These guys almost always have to publish, they cant testify 100% for the plaintiffs, or they will be useless because of their bias.

If you have a problem with a case, write the medical colleges employing many of these experts from finding merit in the case. Lawyers use them to form an opinion. You can't move forward with a suit against a doctor without an expert witness, which as you have seen are high standards. In reality, these guys are VERY VERY expensive.

Anonymous said...

- A side note, if you look in the statute, you will find that these experts MUST PRACTICE the kind of medicine relevant to the claim. You can't just get an Emergency medicine physician to testify about the standard of care based on complex knee surgery.

Michael Kirsch, M.D. said...

@anonymous, thanks for your views and your time and effort. Hope you'll be a 'regular' here.

Anonymous said...

Dr. Kirsch, do you care to address how your proposed reforms address the two complaints you identify?

Anonymous said...

Dr. Kirsch:

Thanks for the welcome. You stated earlier that you thought it was pretty easy to just file suit against a doctor.. what state are you in? are your expert witness standards as high as they are in Texas?

I cant think of anything that would "get rid of frivolous claims" other than 1) having an MD okay the lawsuit and then 2) once before a jury, having such stringent expert witness standards

That part of Texas tort reform was IMO worth it in terms of getting rid of quacks who would testify for the plaintiff just to get money. I generally don't see a need for tort reform, but I find that this measure really cleaned up the process. Unfortunately, the cap has taken away the right to sue which is a different issue.

I am very against "medical board" courts because for one, a jury can look at an expert's credentials on the stand, compare them to the other expert, and generally understand enough to make an educated decision.

Further, I would find these "boards" to be very elitist, and unfair. If an engineer, police officer, nurse, etc gets sued, a "regular jury" finds or doesnt find fault. I am a bit taken a back when people think the general public is too stupid to hear a claim even when experts are the ones testifying.

Michael Kirsch, M.D. said...

"I am very against "medical board" courts because for one, a jury can look at an expert's credentials on the stand, compare them to the other expert, and generally understand enough to make an educated decision."

I think it is tough for a jury to sort out conflicting testimony from two well credentialed experts on a complex medical issue.

"Further, I would find these "boards" to be very elitist, and unfair. If an engineer, police officer, nurse, etc gets sued.."

I don't think that the occupations you cite are having litigation issues to the extent that physicians are. I can't recall a nurse being sued.

I agree with you that caps are not ideal.

Anonymous said...

"I don't think that the occupations you cite are having litigation issues to the extent that physicians are."

Dr. Kirsch, what is this belief based upon? How often are engineers sued v. physicians?

"I agree with you that caps are not ideal"

Since you're a supporter of caps, despite the above statement, can you tell us which of your two main complaints with med mal litigation that you mentioned earlier that caps address?

And again, what solution have you proposed that addresses how many physicians get sued or the fact that most malpractice goes uncompensated?

Michael Kirsch, M.D. said...

Caps in Ohio have reduced filings of medical malpractice cases. I think health courts may be one mechanism to screen out frivolous cases. (See many of my above comments on this thread.) It is challenging to compensate a greater fraction of harmed patients. One might consider a no fault system compensating all complications, not simply negligent acts. I am aware that the medical liability issue has many constituencies who are protecting their own interests more than the public's interest. Personally, I think that the medical profession is more willing to serve the greater good than some of the other players. We do not want to shield negligent doctors, but I admit our profession has not provided adequate oversight over its practitioners. Majority of physicians would support an (ideal) system where every negligent act was compensated.

Anonymous said...

Dr. Kirsch:
Lawyers get sued more than doctors in my state. The medical profession just makes the most noise.
Second, I am a bit offended that you dont think "the people" are worthy to listen to two well qualified experts and make a decision. This is very elitist, IMO. Juries decide complex cases such as those involving whether a car was engineered to a certain standard. I doubt these are any less technical than whether an MD breached a standard of care and was negligent.

Medical Courts also infringe on the 7th Amendment "right to a jury trial in civil cases". A group of doctors making decisions about other doctors is like the fox guarding the henhouse.
Further, I wish you would address the comment regarding the stringent requirements to be an expert in Texas. How does this not weed out frivolous cases in and of itself? What more do you want other than a board certified physician (generally one who publishes) okaying a case?
Last, I strongly disagree with your comment that doctors are more willing to compromise. Most doctors I have spoken with support caps even though they know that they cut out a segment of the population.
Tort reform has taken away the right to a civil jury trial more than anything. Lawyers salaries are actually still going up on average, so the only people hurt, on average, are the citizens. There are less civil jury trials nowadays than there were in the 1940's.
Further, lawyers usually get paid equally for going to arbitration as to trial but that process is skewed because in some circumstances there is no appeal. Many lawyers actually prefer arbitration because its not as formal. However, it takes John Q public out of the picture. I have heard disturbing stories where the arbitrator told the party that "the public wont like it if I rule for X". He then ruled for Y. Too bad you cant appeal.

I think it would be unethical for a lawyer to support taking away the right to a civil jury trial mandated by the 7th amendment in the form of these "medical courts".

We entrust juries to put people to death in criminal trials or to okay the state in taking somone's kids away, yet doctors are scared of these same "dumb common folks" deciding whether they were negligent, even though many experts to an excellent job in breaking down their theories so that the average layman could understand.

Perhaps if you really wanted to find out what needs to be fixed, you would consider becoming an expert witness while you are still practicing, if you think you would be able to do so based on the case and not on the doctor.

Anonymous said...

You've repeatedly made the claim that there were fewer malpractice suits post caps. Of course you realize that many of them that might have settled pre the enactment of the caps were likely filed immediately beforehand to avoid the arbitrary punishment of the caps. Thus the following year the number of lawsuits naturally fell. If a store announces that 48 inch flat screens are 50% off until midnight Thursday, they quite naturally have higher sales pre mid-night than post.

Of course, lawsuits declining doesn't really address either of your goals, does it, since you have no idea if they declined due to the statistical reality mentioned above, or simply they became unviable for those without significant economic loss (kids, elderly, stay at home mothers).

"Personally, I think that the medical profession is more willing to serve the greater good than some of the other players."

When one considers that the centerpiece of every reform act supported by the medical profession is an arbitrary cap on what are adjudged legitimate cases, and generally cases with significant, life changing injuries, I don't know how you make the above statement with a straight face.

"Majority of physicians would support an (ideal) system where every negligent act was compensated."

That's an easy statement to make. However, despite 40 years of supporting caps, no physician or physician lobbyist has proposed a single piece of legislation that moved us closer to that goal.

You do talk a good game though.

Anonymous said...

I'm sorry, that should have said "many that might have settled pre-suit or were in the investigation phase and may or may not have proceeded were filed to beat the cap enactment deadline."

Transor Z said...

http://jama.ama-assn.org/cgi/content/extract/304/2/204

Dr. Kirsch, have you read the Pronovost piece in JAMA? It's right up your alley.
----------------

For an interesting (and critical) practitioner's take on her experience on the Mass. Med. Mal. Tribunal, see

http://www.jaapl.org/cgi/reprint/35/3/286.pdf

As the article alludes to, the authority of the Tribunal in Mass. is very circumscribed and an adverse ruling against a plaintiff really just means s/he must post a small bond to cover defense costs. They claim to weed out 16% - 20% of cases.
-----------------

But let's not lose sight of what tort law is all about: it's about money, "justice" measured in dollars. Kind of like war is an extension of diplomacy by other means, tort litigation is an extension of the insurance claims process by other means. It's all about answering the questions: "Who should pay -- and how much?"

"Tell Michael it was only business."

Anonymous said...

Of course civil litigation is about money (for the most part). That's why damages is a requirement. Money is a universal medium of exchange. Is it perfect? No, but absent a time machine to undo things nothing is.

It takes money to pay one's medical bills, to pay one's health insurance premiums, car payments when one can no longer work, buy food, gas, etc.

Michael Kirsch, M.D. said...

Transor, thanks for the links. The Massachusetts Malpractice Tribunal is a concept worth exploring. Here's a comparison to consider. Physicians admit that the current health care system needs reform. Costs are too high, millions are uninsured, quality is variable, etc. We admit this publicly. Attorneys champion the current the medical liability system, which is far more dysfunctional than the health care system. They never find any serious flaw to address. Any thoughts?

Anonymous said...

Not really comparing apples to apples, are you? If one looks at physicians complaints about the healthcare system, they primarily revolve around how much physicians are or aren't getting paid and how they get paid and the US civil justice system. Their proposals for reform are all geared to either a) giving them more money or b) giving them reduced liability.

There is no "medical liability system". It's a civil trial like any other. Civil trials have their faults, and with respect to med mal several posters who are presumably attorneys agree with you that it's sad that more people aren't compensated for their errors.

Where people are DISagreeing with you is in your solutions. Because they aren't designed to address the problems we can all agree on. They're just designed, as you admit, to tilt justice in favor of the wealthy.

I'm not sure how you judge the relative dysfunction of two different systems with two different goals. Perhaps you can elaborate? However, since healthcare's about to be wholly taken over by the federal government, if it is behind in the dysfunction race, it's about to take the lead.

Still waiting on those solutions to address the problems you so nobly point out.

Anonymous said...

Dr. Kirsh:

Address this: why do you want to stomp all over the 7th amendment (right to a jury trial) to the Constitution and transform a 200+ year old concept so you can have this "tribunal"?

Again, this is such an elitist concept, it boggles the mind. No lawyer in his right mind should support this.

If you want to clean up the process while respecting the Constitution, lawyers will be all ears. However taking yourself out of the civil justice system simply because you have an MD can not be taken seriously.

Anonymous said...

"Attorneys champion the current the medical liability system, which is far more dysfunctional than the health care system."

You mean the civil jury trial system? Yeah, I guess you mean to imply that the Bill of Rights was done in error. Perhaps it should apply to "we the people (except medical doctors, who deserve their own SEPERATE system)"

IMO discovery needs to be reformed. Thats where almost all of the excessive fees come from. THATS where the inefficiency is, not the actual 200+ year old concept.

Transor Z said...

Dr. Kirsch,

How about... we make it a felony for physicians to fail to promptly self-report their serious medical errors or those of colleagues or employees to state licensing boards and/or DHHS? The patient and the patient's health insurance plan would then be notified by the oversight agency. The physician's professional liability carrier will then mandatorily reimburse the patient's future medical expenses associated with the error, set aside a cash reserve in an amount based on actuarial calculations using error information disclosed by the doctor.

"Serious error" defined as exposing the patient to risks significantly beyond those normally associated with the treatment modality, or significantly increasing normal associated risk.

"Significant increase" defined as a statistically significant increase.

It's a win-win. All physicians get to routinely disclose their mistakes and openly acknowledge that to err is human, oversight agencies collect more reliable data on serious errors, insurance carriers get to more accurately quantify risk, undiscovered/covered up errors come to daylight, injured patients are guaranteed coverage for health issues, physician training addresses common serious errors -- it's all good.

I'm guessing that's a "No"?

Michael Kirsch, M.D. said...

Thanks to the commenters for your views.

Nowhere did I write, nor do I believe, that the jury system should be abrogated. I have suggested that an initial tribunal may be one mechanism that can effectively triage cases. Personally, I do not think that the current discovery method is working well, since most defendant targets are released and most injuried parties remain invisible. Any 'litigant' in the tribunal could still pursue a jury trial, regardless of the tribunal's decision, as I have previously stated.

You may be correct that the health care system will soon be more dysfunctional, although I think that mediocre may be a better adjective.

Transor, I think you are approaching a no-fault system, which will be vigorously contested by the bar. They will point out that some folks won't get their full measure of relief. They will shrug off that such a system would bring compensation to millions of suffering folks who presently receive or entitled to no relief.

Finally, while physicians are understandably concerned about our declining incomes, you suggest that this is our overriding anxiety. This is not true for me, as readers of this blog know, and may not be true for many other physicians.

You are correct that the legal and medical professions have different goals. Physicians are trained to seek the truth. Attorneys are trained (and obligated) to protect their clients' interests, which may have nothing to do with the truth.

Anonymous said...

"Nowhere did I write, nor do I believe, that the jury system should be abrogated"

Dr, you're a supporter of caps. That alone is an abrogation of the jury system. And your tribunal does the same thing. You've placed yet another hurdle in front of the claimants getting to a jury, but you don't want that tribunal to have all the facts. That makes little sense, even before we consider the costs .

"Personally, I do not think that the current discovery method is working well, since most defendant targets are released and most injuried parties remain invisible."

Actually, that would mean that the discovery process IS working, if the parties not responsible are being released. The discovery process has little to do with whether or not claimants MAKE a claim though, so your second criticism is nonsensical.

"I think you are approaching a no-fault system, which will be vigorously contested by the bar."

You will also be vigorously contested by the liability carriers. Your speculation as to what the bar would do is just that, speculation. I would speculate that all civil libertarians would oppose it, though, because it would only come in conjunction with single payer.

". This is not true for me, as readers of this blog know, and may not be true for many other physicians."

You're probably right. However, it's interesting that you know this not to be true for your own, but you would accuse all of those in another profession as being only interested in money.

" Physicians are trained to seek the truth. Attorneys are trained (and obligated) to protect their clients' interests, which may have nothing to do with the truth."

Neither profession has a monopoly on the truth. I've seen physician medical records without outright lies in them.

Attorneys have a duty to the truth as well. For example, it's a sanctionable offense to put a witness on the stand that you know is going to lie and to elicit that testimony from him/her. While our client's interests are paramount, we are also officers of the Court, and cannot violate the duty we have there as well.

Physicians are more likely to deal in objective truths, to be sure. After all, you're not dealing with 2 or 3 perspectives on an event and letting a third party (judge or jury) decide which one is correct. You have one interpretation - your own. But if a car wreck happens today, it's likely that each driver, and every witness, all saw different things. You may call advocating what one of them saw as untruthful if it disagrees with another.

Anonymous said...

Doctor:

I take great offense to this comment:

"Physicians are trained to seek the truth. Attorneys are trained (and obligated) to protect their clients' interests, which may have nothing to do with the truth."

Law isn't as black and white as medicine is. There are 2 sides to every story and the best way to seek the truth is through the adversarial system that is the highlight of our Constitution.

Further, when not representing clients in court, lawyers are officers of the court. Lawyers contributing to this conversation are not "representing a client in court" so therefore loyalty lies with the system and the Constitution. That is why I feel lawyers are ethically obligated to oppose tribunals which further limit civil jury trials.

And obviously you have NO IDEA how few civil jury trials there are today because of all those "hurdles". Walk into a court room in Ohio and find a civil jury trial dealing with something other than car wrecks these days... you might be looking for weeks.

We dont need to further limit the civil jury trial system by "tribunals". If anything, discovery needs to be reformed so it can be an in and out for plaintiff and defendants.

Anonymous said...

Doctor:

Here is a blog entry related to the vanishing civil jury trial...

lawtalk.blogspot.com/2010/03/more-thoughts-on-disappearing-jury.html

Michael Kirsch, M.D. said...

I was in a car accident several months ago. Several lawyers contacted me, presumably having scoured the police reports. No physician contacted me. I have heard from others that these solicitions are routine.

I do not understand why any offense would be taken regarding the pursuit of truth. I intended no offense or disparagement. Of course, an attorney cannot lie or knowingly have a witness lie. But when an attorney defends a 'guilty' individual, for example, the attorney's obligation is to protect his client's interest, which is not a search for or an exposure of the truth. The lawyer's role here, as I understand it, is to protect his client's rights and make sure that the other side is playing by the rules. The right to remain silent, is a constitutional protection, but may be an impediment to discovering the truth.

Anonymous said...

Dr. Kirsch:

You have a very limited understanding of the criminal justice system. Since the 18th century, the law has banned criminal defense attorneys from judging their clients. Thank God. People are too biased by nature.

The prosecutor and the jury may judge all they want, but the defense attorney is not allowed to by law. Again, if you dont like that advocate for a new Constitution.

However, what we are discussing here relates to the CIVIL justice system. You seem to confuse two totally different concepts by repeatedly confusing "not negligent" and "not guilty".

Further, if lawyers are calling you in Ohio after you have had an accident, that should be made illegal. In Texas, it is illegal to contact a client in the way you described for at least 30 days.

These type of lawyers generally went to 4th tier law schools and are glorified case brokers. I have seen these types of guys in court, and they are dumber than a box of rocks. There is nothing more pleasureable than taking these clowns to trial (by refusing all settlement offers) and objecting and keeping out any piece of evidence they try to put in because they are too stupid to do so properly.

No respectable practicing board certified trial lawyer calls people after an accident. These are the types of topics I enjoy exploring and would be 100% pro-banning these types of ambulance chasers.

On a related topic, sleazy lawyer ads were protected under the 1st amendement due to a 1977 US Supreme Court decision. I feel that these ads have done more damage to the profession than anything, and even though most lawyers I talk to agree with me, there isnt much we can do about these ads due to that decision..

All these are topics I would be willing to explore, but I am not pro-shutting the courthouse door by creating more hurdles to further deteriorate the civil jury system.

Anonymous said...

..oh and we have a pretty darn high conviction rate in the United States.. many counties have a 90%+ conviction rate (even with DUIs). The Consitution works well, and I have little respect for the defense lawyer who will not go to trial because he claims "his client is guilty". That is not for them to decide, it is up for the jury to decide.

Michael Kirsch, M.D. said...

Just lost my comment to you. Very frustrating. Will abridge. If I confuse a legal term, my meaning may still be valid. Seems like you agree that a defense attorney is not charged with protecting or seeking the truth. The hope is the overall result will be just, even if individual players in the system are not truth seekers. We don't release criminal defendants with a verdict of 'innocent', but 'not guilty'. This is not a statement of truth (he may be guilty), but a statement that a defined evidentiary standard has not been met. Our professions have different philosophies.

Glad you agree re ambulance chasers. Imagine if physicians contacted these folks.

Anonymous said...

Doc:

You are totally missing the train. Criminal defense attorneys representing someone in court aren't involved in this discussion. The civil justice system and the criminal justice system are totally different systems with different burdens of proof, etc. Further no civil lawyer is required to represent someone who is not "negligent"..

To resubmit, we are talking about Civil Lawyers, who are seekers of the truth. I dont know who told you otherwise, but they are wrong. A plaintiff's lawyer is not supposed to take a case he doesn't think is "truthful".


Civil lawyers are more interested in truth than doctors because doctors want some "tribunal" that shuts the average person out of the picture. Further it is common for doctors to try and make evidence disappear when they are sued. If anyone doesn't want the truth to come out, its doctors.

Talk about a different philosophy..

Anonymous said...

Further, if "lawyers aren't truth seekers" than neither are doctors in EVERY med mal case, because in every med mal case, there are very well qualified expert witness physicians testifying for each side.

Anonymous said...

" Imagine if physicians contacted these folks."

They do. They typically use third party services to do it but then the service refers the person in the accident to the clinic that retained the service.

Michael Kirsch, M.D. said...

Points noted. I think we have aired out the issue sufficiently, even if we haven't resolved the controversy. I wonder what your speculation would be why nearly every practicing physician worries about getting sued and practices defensively? I am not referring to marginal or rogue practitioners, but highly competetent physicians? Are we all irrational?

Anonymous said...

Dr.:

Lawyers worry about getting sued as well, I assure you. I am still searching for those statistics on how many times lawyers get sued vs. doctors. I think you will be surprised if I find it.

Unlike doctors, lawyers learn to accept the fact that with a profession comes accountability. If a doctor doesnt like it, there are less paying and less demanding fields to go into. Face it, physicians are one of the top paying occupations in the workforce..(even compared with PhDs who go to school for the same lenght of time as many of you do)

Former Anon said...

". I wonder what your speculation would be why nearly every practicing physician worries about getting sued and practices defensively? I am not referring to marginal or rogue practitioners, but highly competetent physicians? Are we all irrational?"

Given that none of you knows what your true likelihood of getting sued is, none of you have spent much time looking into what exactly you can do to avoid it, none of you has much idea of what the true risk is, and none of you know if your defensive medicine actually defends you, yet you all are deathly afraid, yeah, it appears you are being irrational.

Or at least those of you who walk around ordering tests willy nilly for fear of something you don't understand.

It's understandable. There's a whole industry dedicated to frightening you so you'll support its "reforms", and it confirms what you want to believe anyway. Plus you're busy - you have no time to actually learn if there is any truth or anything to actually fear.

Transor Z said...

A few things:

Federally funded health centers fall under the FTCA, so you can't sue centers or providers directly for negligence. Chalk one up on the single-payer side of the board.

I think "no fault" malpractice schemes are a good thing in many contexts, but with important limitations. For example, we get the docs who don't accurately or fully report errors [cue "Jaws" theme]. You lie or cover up, you're out of the no-fault lifeboat and in the water. Mmm... blood.

You haze/overload young residents at your own peril.

All patient phone calls, medical visits and procedures are recorded (audio and video) and maintained in HIPAA/HITECH secure digital databases for three years.

Huge whistleblower windfalls for nurses, PAs, techs, et al who turn in docs who lie/cover up mistakes.

Just a few ideas.

Anonymous said...

The piece, as usual, is well-written but the logic quite attenuated. Where's the nexus, even colorable, between inflating one's grades and continued frivolous medical malpractice suits?

The truth is, there are too many lawyers. When one looks at the data on the number of lawyers per capita 30 years ago and contrasts it to today, it is apparent that the explosion of lawyers is due, in part, to the proliferation of law schools, and their ever-expanding class sizes
so that it has become an assembly line. Lawyers are supposed to be problem-solvers but the problem is, because of the over-saturation of them, there are not enough bonafide legal disputes and/or issues out there, leading to gross "over lawyering" and worse, contriving disputes and/or issues when common-sense and prudence would have once prevailed.

Just my thoughts.

Anonymous said...

Degrees from a law school doesn't necessarily mean practicing lawyers. Even passing the bar doesn't. Many people get a law degree just for the training, with no intention of practicing.

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